Internal Relocation

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In a recent Court of Appeal case called Re C (Internal Relocation) (reported at [2015] EWCA 1305) the Court of Appeal provided long awaited clarity and guidance as to the law concerning internal relocation cases.

It is well known that if you want to stop your ex taking your children to live in, for example, Australia, France or the USA you can go to court and ask a judge to decide whether they should be allowed to go or not.

What is often much less appreciated is that if your ex wants to move to the other end of the country, the court can still intervene and stop them. If they want to move from London to Carlisle the court is more likely to get involved that in they are proposing to move to Liverpool from Manchester.

The Court of Appeal said there was no rule that moving a child could only be prevented in exceptional cases.

The father appealed against an order permitting the mother to move with the child, C aged 10 years old, from London to Cumbria. C had been spending two nights a week and alternate weekends with her father. At the final hearing of the mother’s application to move, which the father opposed, the judge considered a CAFCASS report, which concluded that a move was not in the child’s best interests, despite the fact that C wanted to move to Cumbria, and was confident that she would be able to maintain a strong relationship with the father if she did so. The judge was concerned that C would not be able to have regular contact with her father.

The judge accepted that if the mother was forced to stay in London she would feel deeply unhappy, and he found that her feelings were likely to have a serious and very harmful impact on the child.

The judge decided that the parents’ relationship would inevitably deteriorate if the mother was unable to move because she would be so angry with the father, and that she would find it much more difficult to make the current arrangements work.

The judge paid some attention to the child’s wishes about the move, and she would be upset if she was not allowed to move.

The judge permitted the move, and made a child arrangements order in respect of the division of the child’s time between her parents. It was ordered that C was to live with her father on alternate weekends, alternating between Cumbria and London; if the father was able to travel to Cumbria during the week, she was to be in his care overnight for up to two nights. There was also provision for daily indirect contact, and holidays were divided equally between the parents.

The father appealed the decision on the basis that the trial judge had wrongly applied the law in treating the mother as the primary carer.

In dismissing the appeal, the Court of Appeal provided the following essential guidance:

  1. The only principle to be applied in such cases was that the welfare of the child was paramount.
  2. The welfare principle governing international cases was the same for internal cases.
  3. Guidance as to the factors to be weighed in determining what was in the child’s best interest, such as those set out in Payne v Payne [2001] EWCA Civ 166, were valuable in helping judges identify the likely important factors but were not to be applied rigidly.
  4. There is no rule that moving a child within the UK could only be prevented in exceptional cases.
  5. The courts will be resistant to preventing parents from exercising their choice as to where to live in the UK, unless the child’s welfare required it, not because of a rule, but because the welfare analysis led to that conclusion.

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